Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698927889011.pdf (New Zealand)
Designs Act 1953 Public Act Date of assent 1953 No 65 26 November 1953 Contents Title Short Title and commencement Interpretation Commissioner of Designs Assistant Commissioners of Designs and other ofﬁcers Registrable designs and proceedings for registration Designs registrable under Act Proprietorship of designs Proceedings for registration Registration of same design in respect of other articles, etc Provisions for ensuring secrecy in respect of designs relevant for defence purposes Provisions as to conﬁdential disclosure, etc Effect of registration, etc Right given by registration Period of copyright Exemption of innocent infringer from liability for damages, etc Compulsory licence in respect of registered design Cancellation of registration Use of registered designs for services of the Crown Use of registered designs for services of the Crown Rights of third parties in respect of Crown use Reference of disputes as to Crown use Special provisions as to Crown use during emergency International arrangements Orders in Council as to convention countries Registration of design where application for protection in convention country has been made Note This Act is administered in the Ministry of Justice Page 3 3 3 5 6 6 7 7 8 9 11 12 13 13 14 14 15 16 18 19 21 21 1 Designs Act 1953 Reprinted as at 3 September 2007 Extension of time for applications under section 21 in certain cases Protection of designs communicated under arrangements with other countries Regulations under section 22 or section 23 Register of designs, etc Register of designs Certiﬁcate of registration Registration of assignments, etc Application of Personal Property Securities Act 1999 Rectiﬁcation of register by the Court Power of Commissioner to correct errors Inspection of registered designs Information as to existence of copyright Evidence of entries, documents, etc Legal proceedings and appeals Certiﬁcate of contested validity of registration Remedy for groundless threats of infringement
 proceedings Appeal to High Court Powers and duties of Commissioner Exercise of discretionary powers of Commissioner Commissioner may grant extension of time Additional provisions for extending time limits Costs and security for costs Evidence before Commissioner Recognition of agents Commissioner may dispense with production of probate or letters of administration in certain cases Offences Offences in respect of designs required to be kept secret Falsiﬁcation of register, etc Fine for falsely representing a design as registered Supplemental Hours of business Closing of Patent Ofﬁce at short notice Regulations Fees Service of notices, etc, by post Annual report 27A 28 29 30 31 32 33 34 35 36 37 37A 38 39 40 41 42 43 44 45 45A 46 47 48 49 2 Reprinted as at 3 September 2007 Designs Act 1953 50 51 52 Application of Act to Tokelau Saving Repeals and savings Schedule Enactments repealed s 2 42 43 43 44 An Act to consolidate and amend certain enactments relating to designs BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows: 1 (1) (2) 2 (1) Short Title and commencement This Act may be cited as the Designs Act 1953.
This Act shall come into force on a day to be appointed for the commencement thereof by the Governor­General by Proclamation.
Interpretation In this Act, unless the context otherwise requires,— Article means any article of manufacture; and includes any part of an article if that part is made and sold separately Assignee includes the personal representative of a deceased assignee; and references to the assignee of any person include references to the assignee of the personal representative or assignee of that person Commissioner means the Commissioner of Designs the British Commonwealth Commonwealth means of Nations; and includes every territory for whose international relations the Government of any country of the Commonwealth is responsible 3 s 2 Designs Act 1953 Reprinted as at 3 September 2007 Convention country, in any provision of this Act, means an entity for the time being declared by an order under section 20 to be a convention country for the purposes of that provision Convention country: this deﬁnition was substituted, as from 14 October 1999, by section 2(2) Designs Amendment Act 1999 (1999 No 120).
Copyright has the meaning assigned to it by subsection (1) of section 11 of this Act Court means the High Court the words “High Court” were substituted for the words “Supreme Court: Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).
Design means features of shape, conﬁguration, pattern, or ornament applied to an article by any industrial process or means, being features which in the ﬁnished article appeal to and are judged solely by the eye; but does not include a method or principle of construction or features of shape or conﬁguration which are dictated solely by the function which the article to be made in that shape or conﬁguration has to perform Government Department means instrument of the Executive Government of New Zealand Journal means the Patent Ofﬁce Journal published under subsection (1) of section 112 of the Patents Act 1953 Prescribed means prescribed by regulations made under this Act Proprietor has the meaning assigned to it by section 6 of this Act Registered proprietor means the person or persons for the time being entered in the register of designs as proprietor of the design Set of articles means a number of articles of the same general character ordinarily on sale or intended to be used together, to each of which the same design, or the same design with modiﬁcations or variations not sufﬁcient to alter the character or substantially to affect the identity thereof, is applied.
(2) Any reference in this Act to an article in respect of which a design is registered shall, in the case of a design registered in respect of a set of articles, be construed as a reference to any article of that set.
any Department or 4 Reprinted as at 3 September 2007 Designs Act 1953 s 3 (4) (3) Any question arising under this Act as to whether a number of articles constitute a set of articles shall be determined by the Commissioner; and notwithstanding anything in this Act any determination of the Commissioner under this subsection shall be ﬁnal.
For the purposes of subsection (1) of section 21 and of section 23 of this Act, the expression personal representative, in relation to a deceased person, includes the legal representative of the deceased appointed in any country outside New Zealand.
In the case of an entity that is a convention country but is not a state, part of a state, or a territory for whose international relations a state is responsible,— (a) A reference in this Act to— Application for protection in a country; or (i) (ii) Application for protection in respect of a coun­ (5) try,— must be read as a reference to application for protection under the rules of the entity: (c) (b) A reference in this Act to the law of a convention coun­ try must be read as a reference to the rules of the entity: A reference in this Act to the Government of a conven­ tion country must be read as a reference to the governing body of the entity.
Compare: Registered Designs Act 1949, s 44 (UK); 1921­22 No 18 s 2 Subsection (5) was inserted, as from 14 October 1999, by section 2(3) Designs Amendment Act 1999 (1999 No 120).

3 (1) (2) Commissioner of Designs There may from time to time be appointed under the State Sector Act 1988 some ﬁt person to be the Commissioner of Designs.
The person who at the commencement of this Act holds the ofﬁce of Commissioner of Patents, Designs, and Trade Marks under the Patents, Designs, and Trade Marks Act 1921­22 shall be deemed to have been appointed as Commissioner of Designs under this Act.
Compare: 1921­22 No 18 s 113 5 s 4 Designs Act 1953 Reprinted as at 3 September 2007 Section 3 was amended, as from 1 January 1963, by section 77(1) State Services Act 1962 (1962 No 132) by substituting the expression “State Services Act 1962” for the expression “Public Service Act 1912”.

The expression “State Sector Act 1988” was substituted for the expression “State Services Act 1962”, as from 1 April 1988, pursuant to section 88(2) State Sector Act 1988 (1988 No 20).
Assistant Commissioners of Designs and other ofﬁcers There may from time to time be appointed under the State Sector Act 1988— (a) One or more ﬁt persons to be Assistant Commissioners of Designs: Such other ofﬁcers and employees as may be necessary for carrying out the purposes of this Act.
(b) Every Assistant Commissioner of Designs so appointed, while he remains in ofﬁce, shall have and may exercise, subject to the control and direction of the Commissioner, all the powers, duties, and functions of the Commissioner, and every reference in this or any other Act to the Commissioner shall, so far as may be necessary for the purpose of giving effect to the provisions of this section, be deemed to include a reference to every Assistant Commissioner of Designs.
The person who at the commencement of this Act holds the ofﬁce of Deputy Commissioner of Patents, Designs, and Trade Marks under the Patents, Designs, and Trade Marks Act 1921­22 shall be deemed to have been appointed an Assistant Commissioner of Designs under this Act.

Compare: 1921­22 No 18 ss 114, 115 Section 4 was amended, as from 1 January 1963, by section 77(1) State Services Act 1962 (1962 No 132) by substituting the expression “State Services Act 1962” for the expression “Public Service Act 1912”.
The expression “State Sector Act 1988” was substituted for the expression “State Services Act 1962”, as from 1 April 1988, pursuant to section 88(2) State Sector Act 1988 (1988 No 20).
Registrable designs and proceedings for registration Designs registrable under Act Subject to the following provisions of this section, a design may, upon application made by the person claiming to be the 4 (1) (2) (3) 5 (1) 6 Reprinted as at 3 September 2007 Designs Act 1953 Part 5 s 7 (2) (3) proprietor, be registered under this Act in respect of any article or set of articles speciﬁed in the application.
Subject to the provisions of this Act, a design shall not be reg­ istered thereunder unless it is new or original and in particular shall not be so registered in respect of any article if it is the same as a design which before the date of the application for registration has been registered or published in New Zealand in respect of the same or any other article or differs from such a design only in immaterial details or in features which are vari­ ants commonly used in the trade.
Regulations made under this Act may provide for excluding from registration under this Act designs for such articles, being articles which are primarily literary or artistic in character, as may be speciﬁed in the regulations.
Compare: Registered Designs Act 1949, s 1 (UK); 1921­22 No 18 ss 2, 52 6 (1) Proprietorship of designs Subject to the provisions of this section, the author of a design shall be treated for the purposes of this Act as the proprietor of the design: Provided that where the design is executed by the author for another person for good consideration, that other person shall be treated for the purposes of this Act as the proprietor.
(2) Where a design, or the right to apply a design to any article, becomes vested, whether by assignment, transmission, or op­ eration of law, in any person other than the original proprietor, either alone or jointly with the original proprietor, that other person, or, as the case may be, the original proprietor and that other person, shall be treated for the purposes of this Act as the proprietor of the design or as the proprietor of the design in relation to that article.
Compare: Registered Designs Act 1949, s 2 (UK); 1921­22 No 18 s 52(1) Proceedings for registration 7 (1) An application for the registration of a design shall be made in the prescribed form and shall be ﬁled at the Patent Ofﬁce in the prescribed manner.

7 Part 5 s 8 Designs Act 1953 Reprinted as at 3 September 2007 (2) (3) For the purpose of deciding whether a design is new or original the Commissioner may make such searches, if any, as he thinks ﬁt.
The Commissioner may refuse any application for the regis­ tration of a design or may register the design in pursuance of the application without modiﬁcation or subject to such modi­ ﬁcations as he thinks ﬁt.

(5) (4) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be pre­ scribed shall be deemed to be abandoned.
Except as otherwise expressly provided by this Act, a design when registered shall be registered as of the date on which the application for registration was made, or such other date (whether earlier or later than that date) as the Commissioner may in any particular case direct: Provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certiﬁ­ cate of registration of the design under this Act is issued.
(6) An appeal to the Court shall lie from any decision of the Com­ missioner under subsection (3) of this section.
Compare: Registered Designs Act 1949, s 3 (UK); 1921­22 No 18 s 52 8 Registration of same design in respect of other articles, etc (1) Where the registered proprietor of a design registered in re­ (b) spect of any article makes an application— (a) For registration, in respect of one or more other articles, of the registered design; or For registration, in respect of the same or one or more other articles, of a design consisting of the registered design with modiﬁcations or variations not sufﬁcient to alter the character or substantially to affect the identity thereof,— the application shall not be refused and the registration made on that application shall not be invalidated by reason only of 8 Reprinted as at 3 September 2007 Designs Act 1953 Part 5 s 9 the previous registration or publication of the registered de­ sign: Provided that the period of copyright in a design registered by virtue of this section shall not extend beyond the expiration of the original and any extended period of copyright in the original registered design.
(2) Where any person makes an application for the registration of (b) a design in respect of any article and either— (a) That design has been previously registered by another person in respect of some other article; or The design to which the application relates consists of a design previously registered by another person in re­ spect of the same or some other article with modiﬁca­ tions or variations not sufﬁcient to alter the character or substantially to affect the identity thereof,— then, if at any time while the application is pending the appli­ cant becomes the registered proprietor of the design previously registered, the foregoing provisions of this section shall apply as if at the time of making the application the applicant had been the registered proprietor of that design.
Compare: Registered Designs Act 1949, s 4 (UK); 1921­22 No 18 s 53; 1939 No 26 s 69 9 Provisions for ensuring secrecy in respect of designs relevant for defence purposes (1) Where, either before or after the commencement of this Act, an application for the registration of a design has been made, and it appears to the Commissioner that the design is one of a class notiﬁed to him by the Minister of Defence as relevant for defence purposes, or is in the opinion of the Commissioner likely to be valuable for defence purposes, he may give direc­ tions for prohibiting or restricting the publication of informa­ tion with respect to the design, or the communication of such information to any person or class of persons speciﬁed in the directions.
Regulations may be made under this Act for securing that the representation or specimen of a design in the case of which directions are given under this section shall not be open to (2) 9 Part 5 s 9 Designs Act 1953 Reprinted as at 3 September 2007 inspection at the Patent Ofﬁce during the continuance in force of the directions.
(3) Where the Commissioner gives any such directions as afore­ said, he shall give notice of the application and of the direc­ tions to the Minister of Defence, and thereupon the following provisions shall have effect, that is to say: (a) The Minister of Defence shall, upon receipt of the notice, consider whether the publication of the design would be prejudicial to the defence of New Zealand, and, unless a notice under paragraph (c) of this sub­ section has previously been given by the Minister of Defence to the Commissioner, shall reconsider that question before the expiration of 9 months from the date of ﬁling of the application for registration of the design and at least once in every subsequent year: For the purpose aforesaid, the Minister of Defence may, at any time after the design has been registered or, with the consent of the applicant, at any time before the de­ sign has been registered, inspect the representation or specimen of the design ﬁled in pursuance of the appli­ cation: If upon consideration of the design at any time it appears to the Minister of Defence that the publication of the design would not, or would no longer, be prejudicial to the defence of New Zealand, the Minister of Defence shall give notice to the Commissioner to that effect: (b) (c) (d) On the receipt of any such notice the Commissioner shall revoke the directions and may, subject to such con­ ditions, if any, as he thinks ﬁt, extend the time for doing anything required or authorised to be done by or under this Act in connection with the application or registra­ tion, whether or not that time has previously expired.
(4) No person resident in New Zealand shall, except under the au­ thority of a written permit granted by or on behalf of the Com­ missioner, make or cause to be made any application outside New Zealand for the registration of a design of any class pre­ scribed for the purposes of this subsection unless— (a) An application for registration of the same or substan­ tially the same design has been made in New Zealand 10 Reprinted as at 3 September 2007 Designs Act 1953 Part 5 s 10 (b) not less than 6 weeks before the application outside New Zealand; and Either no directions have been given under subsection (1) of this section in relation to the application in New Zealand or all such directions have been revoked: Provided that this subsection shall not apply in relation to a design for which an application for protection has ﬁrst been ﬁled in a country outside New Zealand by a person resident outside New Zealand.
Compare: Registered Designs Act 1949, s 5 (UK) Provisions as to conﬁdential disclosure, etc 10 (1) An application for the registration of a design shall not be re­ fused, and the registration of a design shall not be invalidated, by reason only of— (a) The disclosure of the design by the proprietor to any other person in such circumstances as would make it contrary to good faith for that other person to use or publish the design; or The disclosure of the design in breach of good faith by any person other than the proprietor of the design; or In the case of a new or original textile design intended for registration, the acceptance of a ﬁrst and conﬁdential order for goods bearing the design.
(2) An application for the registration of a design shall not be re­ fused, and the registration of a design shall not be invalidated, by reason only— (a) That a representation of the design, or any article to which the design has been applied, has been displayed, with the consent of the proprietor of the design, at an international or industrial exhibition declared as such by the Commissioner by notice in the Journal, whether the exhibition is held in New Zealand or elsewhere ; or That after any such display as aforesaid, and during the period of the exhibition, a representation of the design or any such article as aforesaid has been displayed by any person without the consent of the proprietor; or (b) (c) (b) 11 Part 11 s 11 Designs Act 1953 Reprinted as at 3 September 2007 (c) That a representation of the design has been published in consequence of any such display as is mentioned in paragraph (a) of this subsection,— if the application for registration of the design is made not later than 6 months after the date of the opening of the exhibition.
(3) An application for the registration of a design shall not be re­ fused, and the registration of a design shall not be invalidated, by reason only of the communication of the design by the pro­ prietor thereof to a Government Department or to any person authorised by a Government Department to consider the mer­ its of the design, or of anything done in consequence of such a communication.
Compare: Registered Designs Act 1949, s 6 (UK); 1921­22 No 18 ss 58, 63 Subsection (2)(a) was amended, as from 12 November 1980, by section 5(2) Shop Trading Hours Amendment Act 1980 (1980 No 36) by omitting the words “or at an exhibition authorised by the Governor­General by Order in Council under the Exhibitions Act 1910”.
Subsection (2)(a) was amended, as from 2 September 1996, by section 2 De­ signs Amendment Act 1996 (1996 No 118) by substituting the words “Com­ missioner by notice in the Journal” for the words “Governor­General by notice in the Gazette”.
Effect of registration, etc Right given by registration The registration of a design under this Act shall give to the registered proprietor the copyright in the design, that is to say, the exclusive right in New Zealand to make or import for sale or for use for the purposes of any trade or business, or to sell, hire, or offer for sale or hire, any article in respect of which the design is registered, being an article to which the regis­ tered design or a design not substantially different from the registered design has been applied, and to make anything for enabling any such article to be made as aforesaid, whether in New Zealand or elsewhere.
Subject to the provisions of this Act and of subsection (3) of section 7 of the Crown Proceedings Act 1950, the registration of a design shall have the same effect against the Crown as it has against a subject.
Compare: Registered Designs Act 1949, s 7 (UK); 1921­22 No 18 ss 56(1), 66 11 (1) (2) 12 Reprinted as at 3 September 2007 Designs Act 1953 Part 11 s 13 12 (1) (2) 13 (1) Period of copyright Copyright in a registered design shall, subject to the provisions of this Act, subsist for a period of 5 years from the date of registration.
The Commissioner shall extend the period of copyright for a second period of 5 years from the expiration of the original period, and for a third period of 5 years from the expiration of the second period, if an application for extension of the period of copyright for the second period or third period is made in the prescribed form and the prescribed fee is also paid before the expiration of the original period or the second period, as the case may be, or if such application is made and the fee is paid within such further period (not exceeding 6 months) as may be speciﬁed in a request to the Commissioner and accompanied by the prescribed additional fee.
Compare: Registered Designs Act 1949, s 8 (UK); 1921­22 No 18 s 56 Subsection (2) was substituted, as from 20 October 1972, by section 2 Designs Amendment Act 1972 (1972 No 53).
Exemption of innocent infringer from liability for damages, etc In proceedings for the infringement of copyright in a registered design, damages or account of proﬁts shall not be awarded against a defendant who proves that at the date of the infringe­ ment he was not aware and had no reasonable ground for sup­ posing that the design was registered in New Zealand; and a person shall not be deemed to have been aware or to have had any reasonable ground for supposing as aforesaid by reason only of the marking of an article with the word registered or any abbreviation thereof, or any word or words expressing or implying that the design applied to the article has been regis­ tered, unless the word or words are accompanied by the words New Zealand or the letters NZ and by the number of the de­ sign.
(2) Nothing in this section shall affect the power of the Court to grant an injunction in any proceedings for infringement of copyright in a registered design.
Compare: Registered Designs Act 1949, s 9 (UK); 1921­22 No 18 s 38 13 Part 11 s 14 Designs Act 1953 Reprinted as at 3 September 2007 Compulsory licence in respect of registered design 14 (1) At any time after a design has been registered any person inter­ ested may apply to the Commissioner for the grant of a com­ pulsory licence in respect of the design on the ground that the design is not applied in New Zealand by any industrial process or means to the article in respect of which it is registered to such an extent as is reasonable in the circumstances of the case; and the Commissioner may make such order on the application as he thinks ﬁt.
(2) An order for the grant of a licence shall, without prejudice to any other method of enforcement, have effect as if it were a deed executed by the registered proprietor and all other neces­ sary parties, granting a licence in accordance with the order.

(3) No order shall be made under this section which would be at variance with any treaty, convention, arrangement, or engage­ ment applying to New Zealand and any convention country.
(4) An appeal to the Court shall lie from any order of the Com­ missioner under this section.

Compare: Registered Designs Act 1949, s 10 (UK); 1921­22 No 18 s 62 15 (1) Cancellation of registration The Commissioner may, upon a request made in the prescribed manner by the registered proprietor, cancel the registration of a design.
(2) At any time after a design has been registered any person inter­ ested may apply to the Commissioner for the cancellation of the registration of the design on the ground that the design was not, at the date of the registration thereof, new or original, or on any other ground on which the Commissioner could have re­ fused to register the design; and the Commissioner may make such order on the application as he thinks ﬁt.
14 Reprinted as at 3 September 2007 Designs Act 1953 Part 16 s 16 (3) An appeal to the Court shall lie from any order of the Com­ missioner under subsection (2) of this section.
Compare: Registered Designs Act 1949, s 11 (UK); 1921­22 No 18 s 61 (2) Use of registered designs for services of the Crown Use of registered designs for services of the Crown 16 (1) Notwithstanding anything in this Act, any Government De­ partment, and any person authorised in writing by a Govern­ ment Department, may use any registered design for the ser­ vices of the Crown in accordance with the following provi­ sions of this section.
If and so far as the design has, before the date of registration thereof, been duly recorded by or applied by or on behalf of a Government Department otherwise than in consequence of the communication of the design directly or indirectly by the registered proprietor or any person from whom he derives title, any use of the design by virtue of this section may be made free of any royalty or other payment to the registered proprietor.
If and so far as the design has not been so recorded or ap­ plied as aforesaid, any use of the design made by virtue of this section at any time after the date of registration thereof, or in consequence of any such communication as aforesaid, shall be made upon such terms as may be agreed upon, either before or after the use, between the Government Department and the registered proprietor with the approval of the Minister of Fi­ nance, or as may in default of agreement be determined by the Court on a reference under section 18 of this Act.
The authority of a Government Department in respect of a de­ sign may be given under this section either before or after the design is registered and either before or after the acts in respect of which the authority is given are done, and may be given to any person whether or not he is authorised directly or indi­ rectly by the registered proprietor to use the design.
(3) (4) (5) Where any use of a design is made by or with the authority of a Government Department under this section, then, unless it appears to the Department that it would be contrary to the public interest so to do, the Department shall notify the regis­ 15 Part 16 s 17 Designs Act 1953 Reprinted as at 3 September 2007 tered proprietor as soon as practicable after the use is begun, and furnish him with such information as to the extent of the use as he may from time to time require.
For the purposes of this section and of section 17 of this Act, any use of a design for the supply to the Government of any country outside New Zealand, in pursuance of any agreement or arrangement between Her Majesty’s Government in New Zealand and the Government of that country, of articles re­ quired for the defence of that country shall be deemed to be a use of the design for the services of the Crown; and the power of a Government Department or a person authorised by a Gov­ ernment Department under this section to use a design shall include power— (a) To sell such articles to the Government of any country in pursuance of any such agreement or arrangement as aforesaid; and To sell to any person any articles made in the exercise of the powers conferred by this section which are no longer required for the purpose for which they were made.
(b) The purchaser of any articles sold in the exercise of powers conferred by this section, and any person claiming through him, shall have power to deal with them in the same manner as if the rights in the registered design were held on behalf of Her Majesty.
Compare: Registered Designs Act 1949, First Schedule, para 1 (UK) Rights of third parties in respect of Crown use In relation to any use of a registered design, or a design in re­ spect of which an application for registration is pending, made for the services of the Crown— (a) By a Government Department or a person authorised by a Government Department under section 16 of this Act; or By the registered proprietor or applicant for registration to the order of a Government Department,— (b) the provisions of any licence, assignment, or agreement made, whether before or after the commencement of this Act, be­ tween the registered proprietor or applicant for registration or any person who derives title from him or from whom he de­ (6) (7) 17 (1) 16 Reprinted as at 3 September 2007 Designs Act 1953 Part 16 s 17 rives title and any person other than a Government Department shall be of no effect so far as those provisions restrict or regu­ late the use of the design, or any model, document, or infor­ mation relating thereto, or provide for the making of payments in respect of any such use, or calculated by reference thereto; and the reproduction or publication of any model or document in connection with the said use shall not constitute an infringe­ ment of any copyright subsisting in the model or document.
(2) Where an exclusive licence granted otherwise than for royal­ ties or other beneﬁts determined by reference to the use of the design is in force under the registered design, then,— (a) In relation to any use of the design which, but for the provisions of this section and section 16 of this Act, would constitute an infringement of the rights of the licensee, subsection (3) of section 16 of this Act shall have effect as if for the reference to the registered pro­ prietor there were substituted a reference to the licensee; and In relation to any use of the design by the licensee by virtue of an authority given under section 16 of this Act, that section shall have effect as if subsection (3) of that section were omitted.
(b) (3) Subject to the provisions of subsection (2) of this section, where the registered design or the right to apply for or obtain registration of the design has been assigned to the registered proprietor in consideration of royalties or other beneﬁts deter­ mined by reference to the use of the design, then,— (a) In relation to any use of the design by virtue of section 16 of this Act, subsection (3) of that section shall have effect as if the reference to the registered proprietor in­ cluded a reference to the assignor, and any sum payable by virtue of that subsection shall be divided between the registered proprietor and the assignor in such pro­ portion as may be agreed upon between them or as may in default of agreement be determined by the Court on a reference under section 18 of this Act; and In relation to any use of the design made for the services of the Crown by the registered proprietor to the order of a Government Department, subsection (3) of section 16 (b) 17 Part 16 s 18 Designs Act 1953 Reprinted as at 3 September 2007 of this Act shall have effect as if that use were made by virtue of an authority given under that subsection.
(4) Where, under subsection (3) of section 16 of this Act, pay­ ments are required to be made by a Government Department to a registered proprietor in respect of any use of a design, any person being the holder of an exclusive licence under the reg­ istered design (not being such a licence as is mentioned in sub­ section (2) of this section) authorising him to make that use of the design shall be entitled to recover from the registered pro­ prietor such part (if any) of those payments as may be agreed upon between that person and the registered proprietor, or as may in default of agreement be determined by the Court under section 18 of this Act to be just having regard to any expend­ iture incurred by that person— (a) (b) In developing the said design; or In making payments to the registered proprietor, other than royalties or other payments determined by refer­ ence to the use of the design, in consideration of the licence,— and if, at any time before the amount of any such payment has been agreed upon between the Government Department and the registered proprietor, that person gives notice in writing of his interest to the Department, any agreement as to the amount of that payment shall be of no effect unless it is made with his consent.
In this paragraph exclusive licence means a licence from the registered proprietor which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the registered proprietor), any right in respect of the registered design.
Compare: Registered Designs Act 1949, First Schedule, para 2 (UK) (5) Reference of disputes as to Crown use 18 (1) Any dispute as to the exercise by a Government Department or a person authorised by a Government Department of the powers conferred by section 16 of this Act, or as to terms for the use of a design for the services of the Crown thereunder, or as to the right of any person to receive any part of a pay­ ment made in pursuance of subsection (3) of that section, may 18 Reprinted as at 3 September 2007 Designs Act 1953 Part 16 s 19 (2) (3) (4) (5) (b) be referred to the Court by either party to the dispute in such manner as may be prescribed by rules of Court.
In any proceedings under this section to which a Government Department is a party, the Department may,— (a) If the registered proprietor is a party to the proceedings, apply for cancellation of the registration of the design upon any ground upon which the registration of a design may be cancelled on an application to the Court under section 28 of this Act: In any case, put in issue the validity of the registration of the design without applying for its cancellation.
If in such proceedings as aforesaid any question arises whether a design has been recorded or applied as mentioned in section 16 of this Act, and the disclosure of any document recording the design, or of any evidence of the application thereof, would in the opinion of the Department be prejudicial to the public interest, the disclosure may be made conﬁdentially to counsel for the other party or to an independent expert mutually agreed upon.
In determining under this paragraph any dispute between a Government Department and any person as to terms for the use of a design for the services of the Crown, the Court shall have regard to any beneﬁt or compensation which that person or any person from whom he derives title may have received, or may be entitled to receive, directly or indirectly from any Government Department in respect of the design in question.
In any proceedings under this section the Court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to a special or ofﬁcial referee or an arbitrator on such terms as the Court may direct; and ref­ erences to the Court in the foregoing provisions of this section shall be construed accordingly.
Compare: Registered Designs Act 1949, First Schedule, para 3 (UK) 19 Special provisions as to Crown use during emergency (1) During any period of emergency within the meaning of this section the powers exercisable in relation to a design by a Gov­ ernment Department, or a person authorised by a Government Department under section 16 of this Act, shall include power 19 Part 16 s 19 Designs Act 1953 Reprinted as at 3 September 2007 (f) (e) (c) (d) (g) (b) to use the design for any purpose which appears to the Depart­ ment necessary or expedient— (a) For the efﬁcient prosecution of any war in which Her Majesty may be engaged; or For the maintenance of supplies and services essential to the life of the community; or For securing a sufﬁciency of supplies and services es­ sential to the well­being of the community; or For promoting the productivity of industry, commerce, and agriculture; or For fostering and directing exports and reducing im­ ports, or imports of any classes, from all or any coun­ tries and for redressing the balance of trade; or Generally for ensuring that the whole resources of the community are available for use, and are used, in a man­ ner best calculated to serve the interests of the commu­ nity; or For assisting the relief of suffering and the restoration and distribution of essential supplies and services in any part of the Commonwealth or of the Republic of Ireland or in any foreign countries that are in grave distress as a result of war; or For providing or securing supplies and services required for the defence of any part of the Commonwealth or for the maintenance or restoration of peace and security in any part of the world, or for any measures arising out of a breach or apprehended breach of peace in any part of the world; or For preventing supplies or services being disposed of in a manner prejudicial to the defence of any part of the Commonwealth or to peace and security in any part of the world or to any such measures as aforesaid,— and any reference in sections 16 to 18 of this Act to the services of the Crown shall be construed as including a reference to the purposes aforesaid.
In this section the expression period of emergency means any period beginning on such date as may be declared by Order in Council published in the Gazette to be the commencement, and (h) (i) (2) 20 Reprinted as at 3 September 2007 Designs Act 1953 Part 20 s 21 ending on such date as may be so declared to be the termin­ ation, of a period of emergency for the purpose of this section.
(3) All Orders in Council made under this section shall be laid before Parliament within 28 days after the date of the mak­ ing thereof if Parliament is then in session, and, if not, shall be laid before Parliament within 28 days after the date of the commencement of the next ensuing session.
Compare: Registered Designs Act 1949, First Schedule, para 4 (UK) 20 International arrangements Orders in Council as to convention countries For the purpose of giving effect to any international agreement or arrangement to which New Zealand is a party or that applies to New Zealand, the Governor­General may by Order in Coun­ cil declare that any entity speciﬁed in the order that is a party to the agreement or arrangement or to which the agreement or arrangement applies (whether a state, part of a state, a territory for whose international relations a state is responsible, a pol­ itical union, an international organisation, or any other entity) is, for the purposes of all or any of the provisions of this Act, a convention country.
Section 20 was substituted, as from 14 October 1999, by section 2(1) Designs Amendment Act 1999 (1999 No 120).

See section 2(4) of that Act as to this substitution not affecting any order made under the original section 20.
21 Registration of design where application for protection in convention country has been made (1) An application for registration of a design in respect of which protection has been applied for in a convention country may be made in accordance with the provisions of this Act by the person by whom the application for protection was made or his personal representative or assignee: Provided that no application shall be made by virtue of this section after the expiration of 6 months from the date of the application for protection in a convention country or, where more than one such application for protection has been made, from the date of the ﬁrst application.
21 Part 20 s 21 Designs Act 1953 Reprinted as at 3 September 2007 (2) A design registered on an application made by virtue of this section shall be registered as of the date of the application for protection in the convention country, or where more than one such application for protection has been made, the date of the ﬁrst such application: Provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certiﬁ­ cate of registration of the design under this Act is issued.
(3) An application for the registration of a design made by virtue of this section shall not be refused, and the registration of a design on such an application shall not be invalidated, by rea­ son only of the registration or publication of the design in New Zealand during the period speciﬁed in the proviso to subsec­ tion (1) of this section as that within which the application for registration may be made.
(4) Where a person has applied for protection for a design by an application which,— (a) In accordance with the terms of a treaty subsisting be­ tween 2 or more convention countries, is equivalent to an application duly made in any one of those conven­ tion countries; or In accordance with the law of any convention country, is equivalent to an application duly made in that con­ vention country,— (b) he shall be deemed for the purposes of this section to have applied in that convention country.
For the purposes of this section, where more than one appli­ cation for protection in a convention country has been made, the ﬁrst application may be disregarded and the second appli­ cation shall be substituted for the ﬁrst application where— (a) The ﬁrst application was made in or in respect of the same convention country and by the same applicant as the second application; and (b) Not later than the date of ﬁling of the second appli­ cation, the ﬁrst application was unconditionally with­ drawn, abandoned, or refused; and The ﬁrst application had not been made available to the public in New Zealand or elsewhere before its uncondi­ tional withdrawal, abandonment, or refusal; and (c) (5) 22 Reprinted as at 3 September 2007 Designs Act 1953 Part 20 s 22 22 (1) (2) (d) No rights remain outstanding in respect of the ﬁrst ap­ (e) plication; and The ﬁrst application has not served as a basis for claim­ ing a right of priority in relation to another application in any country.
Compare: Registered Designs Act 1949, s 14 (UK); 1939 No 26 s 55 Subsection (5) was inserted, as from 2 September 1996, by section 3 Designs Amendment Act 1996 (1996 No 118).
Extension of time for applications under section 21 in certain cases If the Governor­General is satisﬁed that provision substan­ tially equivalent to the provision to be made by or under this section has been or will be made under the law of any conven­ tion country, he may, by Order in Council, make regulations empowering the Commissioner to extend the time for making application under subsection (1) of section 21 of this Act for registration of a design in respect of which protection has been applied for in that country in any case where the period spe­ ciﬁed in the proviso to that subsection expires during a period prescribed by the regulations.
Regulations made under this section— (a) May, where any agreement or arrangement has been made between Her Majesty’s Government in New Zealand and the Government of the convention country for the supply or mutual exchange of information or articles, provide, either generally or in any class of case speciﬁed in the regulations, that an extension of time shall not be granted under this section unless the design has been communicated in accordance with the agreement or arrangement: (b) May, either generally or in any class of case speciﬁed in the regulations, ﬁx the maximum extension which may be granted under this section: (c) May prescribe or allow any special procedure in con­ nection with applications made by virtue of this section: (d) May empower the Commissioner to extend, in relation to an application made by virtue of this section, the time limited by or under the foregoing provisions of this Act 23 Part 20 s 23 Designs Act 1953 Reprinted as at 3 September 2007 for doing any act, subject to such conditions, if any, as may be imposed by or under the regulations: (e) May provide for securing that the rights conferred by registration on an application made by virtue of this section shall be subject to such restrictions or condi­ tions as may be speciﬁed by or under the regulations and in particular to restrictions and conditions for the protection of persons (including persons acting on be­ half of Her Majesty) who, otherwise than as the result of a communication made in accordance with such an agreement or arrangement as is mentioned in paragraph (a) of this subsection, and before the date of the appli­ cation in question or such later date as may be allowed by the regulations, may have imported or made articles to which the design is applied or may have made an ap­ plication for registration of the design.
Compare: Registered Designs Act 1949, s 15 (UK); 1943 No 6 s 5 Protection of designs communicated under arrangements with other countries Subject to the provisions of this section, regulations may be made under this Act for securing that, where a design has been communicated in accordance with an agreement or ar­ rangement made between Her Majesty’s Government in New Zealand and the Government of any other country for the sup­ ply or mutual exchange of information or articles,— (a) An application for the registration of the design made by the person from whom the design was communicated, or his personal representative or assignee, shall not be prejudiced, and the registration of the design in pur­ suance of such an application shall not be invalidated, by reason only that the design has been communicated as aforesaid or that in consequence thereof— (i) (ii) An application for registration of the design has been made by any other person, or the design has been registered on such an application: The design has been published or applied; or (b) Any application for the registration of a design made in consequence of such a communication as aforesaid 23 (1) 24 Reprinted as at 3 September 2007 Designs Act 1953 Part 20 s 24 (2) (3) (4) 24 may be refused and any registration of a design made on such an application may be cancelled.
Regulations made under subsection (1) of this section may provide that the publication or application of a design, or the making of any application for registration thereof, shall, in such circumstances and subject to such conditions or excep­ tions as may be prescribed by the regulations, be presumed to have been in consequence of such a communication as is men­ tioned in that subsection.
The power to make regulations under this section, so far as it is exercisable for the beneﬁt of persons from whom de­ signs have been communicated to Her Majesty’s Government in New Zealand by the Government of any other country, shall only be exercised if and to the extent that the Governor­Gen­ eral is satisﬁed that substantially equivalent provision has been or will be made under the law of that country for the beneﬁt of persons from whom designs have been communicated by Her Majesty’s Government in New Zealand to the Government of that country.
References in subsection (3) of this section to the communi­ cation of a design to or by Her Majesty’s Government in New Zealand or the Government of any other country shall be con­ strued as including references to the communication of the de­ sign by or to any person authorised in that behalf by the Gov­ ernment in question.
Compare: Registered Designs Act 1949, s 16 (UK); 1946 No 32 s 4 Regulations under section 22 or section 23 Any regulations made under section 22 or section 23 of this Act, and any order made, direction given, or other action taken under the regulations by the Commissioner, may be made, given, or taken so as to have effect as respects things done or omitted to be done on or after such date, whether before or af­ 25 Part 25 s 25 Designs Act 1953 Reprinted as at 3 September 2007 ter the coming into operation of the regulations or of this Act, as may be speciﬁed in the regulations.
Compare: Registered Designs Act 1949, s 37(2) (UK); 1943 No 6 s 7 Register of designs, etc (2) 25 (1) Register of designs There shall be kept at the Patent Ofﬁce under the control of the Commissioner a register of designs, in which there shall be entered the names and addresses of proprietors of registered designs, notices of assignments and of transmissions of regis­ tered designs, and such other matters as may be prescribed or as the Commissioner may think ﬁt.
Subject to the provisions of this Act and to regulations made thereunder, the register of designs shall, at all convenient times, be open to inspection by the public; and certiﬁed copies sealed with the seal of the Patent Ofﬁce of any entry in the register shall be given to any person requiring them on payment of the prescribed fee.

The register of designs shall be prima facie evidence of any matters required or authorised by this Act to be entered therein.
(4) No notice of any trust, whether expressed, implied, or con­ structive, shall be entered in the register of designs, and the Commissioner shall not be affected by any such notice.

Compare: Registered Designs Act 1949, s 17 (UK); 1921­22 No 18 ss 55, 118, 119 (3) Certiﬁcate of registration The Commissioner shall grant a certiﬁcate of registration in the prescribed form to the registered proprietor of a design when the design is registered.
The Commissioner may, in a case where he is satisﬁed that the certiﬁcate of registration has been lost or destroyed, or in any other case in which he thinks it expedient, on application made to him in the prescribed manner and on payment of the prescribed fee, furnish a further certiﬁcate.
Compare: Registered Designs Act 1949, s 18 (UK); 1921­22 No 18 s 54 26 (1) (2) 26 Reprinted as at 3 September 2007 Designs Act 1953 Part 25 s 27 Registration of assignments, etc 27 (1) Where any person becomes entitled by assignment, transmis­ sion, or operation of a law to a registered design or to a share in a registered design, or becomes entitled as mortgagee, li­ censee, or otherwise to any other interest in a registered design, he shall apply to the Commissioner in the prescribed manner for the registration of his title as proprietor or co­proprietor, or, as the case may be, of notice of his interest, in the register of designs.
(2) Without prejudice to the provisions of subsection (1) of this section, an application for the registration of the title of any person becoming entitled by assignment to a registered design or a share in a registered design, or becoming entitled by virtue of a mortgage, licence, or other instrument to any other interest in a registered design, may be made in the prescribed manner by the assignor, mortgagor, licensor, or other party to that in­ strument, as the case may be.
(3) Where application is made under this section for the registra­ tion of the title of any person, the Commissioner shall, upon proof of title to his satisfaction,— (a) Where that person is entitled to a registered design or a share in a registered design, register him in the register of designs as proprietor or co­proprietor of the design, and enter in that register particulars of the instrument or event by which he derives title; or (4) (b) Where that person is entitled to any other interest in the registered design, enter in that register notice of his in­ terest, with particulars of the instrument (if any) creat­ ing it.
Subject to any rights vested in any other person of which no­ tice is entered in the register of designs, the person or persons registered as proprietor of a registered design shall have power to assign, grant licences under, or otherwise deal with the de­ sign, and to give effectual receipts for any consideration for any such assignment, licence, or dealing: Provided that any equities in respect of the design may be en­ forced in like manner as in respect of any other personal prop­ erty.
27 Part 25 s 27A Designs Act 1953 Reprinted as at 3 September 2007 (5) Except for the purposes of an application to rectify the regis­ ter under the following provisions of this Act, a document in respect of which no entry has been made in the register of de­ signs under subsection (3) of this section shall not be admitted in any Court as evidence of the title of any person to a regis­ tered design or share of or interest in a registered design unless the Court otherwise directs.
Compare: Registered Designs Act 1949, s 19 (UK); 1921­22 No 18 s 122 27A Application of Personal Property Securities Act 1999 Nothing in sections 25 to 27e affects the operation of the Personal Property Securities Act 1999 Section 27A was inserted, as from 1 May 2002, by section 191(1) Personal Property Securities Act 1999 (1999 No 126).

See also Part 12 of that Act for transitional provisions.
28 (1) (2) Rectiﬁcation of register by the Court The Court may, on the application of any person aggrieved, order the register of designs to be rectiﬁed by the making of any entry therein or the variation or deletion of any entry therein.

In proceedings under this section the Court may determine any question which it may be necessary or expedient to decide in connection with the rectiﬁcation of the register.
(3) Notice of any application to the Court under this section shall be given in the prescribed manner to the Commissioner, who shall be entitled to appear and be heard on the application, and shall appear if so directed by the Court.

(4) Any order made by the Court under this section shall direct that notice of the order shall be served on the Commissioner in the prescribed manner; and the Commissioner shall, on receipt of the notice, rectify the register accordingly.
Compare: Registered Designs Act 1949, s 20 (UK); 1921­22 No 18 s 123 Power of Commissioner to correct errors 29 (1) Where a mistake exists in the register of designs or in any document issued under this Act by reason of any error or omis­ sion on the part of the Patent Ofﬁce, the Commissioner may, in accordance with the provisions of this section, correct the 28 Reprinted as at 3 September 2007 Designs Act 1953 Part 25 s 30 mistake, and for that purpose may require the production of the document.
(2) Where the Commissioner proposes to make any such correc­ tion as aforesaid he shall give notice of the proposal to the per­ sons who appear to him to be concerned, and shall give them an opportunity to be heard before making the correction.
(3) Where a mistake exists in the register of designs, or in any ap­ plication for registration of a design or other document ﬁled in pursuance of such an application, or in any proceedings in con­ nection with any design, by reason of an error or an omission on the part of the proprietor of the design or of the applicant for registration of the design or of any other person concerned, a correction may be made in accordance with the provisions of this section upon a request in writing by any person inter­ ested and payment of the prescribed fee.
If it appears to the Commissioner that the correction would materially alter the meaning or scope of the document to which the request relates and ought not to be made without notice to persons likely to be affected thereby, he shall require notice of the nature of the proposed correction to be advertised in the prescribed manner.
(4) Within the prescribed time after any such advertisement as aforesaid, any person interested may give notice to the Com­ missioner of opposition to the request, and where any such no­ tice of opposition is given the Commissioner shall give notice thereof to the person by whom the request was made, and shall give to him and to the opponent an opportunity to be heard be­ fore he decides the case.

(5) An appeal to the Court shall lie from any decision of the Com­ missioner under this section.
Compare: Registered Designs Act 1949, s 21 (UK); 1921­22 No 18 s 121; 1946 No 32 s 7 30 (1) Inspection of registered designs Subject to the following provisions of this section and to any regulations made in pursuance of subsection (2) of section 9 of this Act, the representation or specimen of a design registered under this Act shall be open to inspection at the Patent Ofﬁce on and after the day on which the certiﬁcate of registration is issued.
29 Part 25 s 31 Designs Act 1953 Reprinted as at 3 September 2007 (2) (3) In the case of a design registered in respect of an article of any class prescribed for the purposes of this subsection, no repre­ sentation or specimen of the design ﬁled in pursuance of the application shall, until the expiration of such period after the day on which the certiﬁcate of registration is issued as may be prescribed in relation to articles of that class, be open to inspec­ tion at the Patent Ofﬁce except by the registered proprietor, a person authorised in writing by the registered proprietor, or a person authorised by the Commissioner or by the Court: Provided that where the Commissioner proposes to refuse an application for the registration of any other design on the ground that it is the same as or differs only in immaterial details or in features which are variants commonly used in the trade, the applicant shall be entitled to inspect the repre­ sentation or specimen of the ﬁrst­mentioned design ﬁled in pursuance of the application for registration of that design.
In the case of a design registered in respect of an article of any class prescribed for the purposes of subsection (2) of this section, the representation or specimen of the design shall not, during the period prescribed as aforesaid, be inspected by any person by virtue of this section except in the presence of the Commissioner or of a member of his staff acting under him; and, except in the case of an inspection authorised by the pro­ viso to that subsection, the person making the inspection shall not be entitled to take a copy of the representation or specimen of the design or any part thereof.
(4) Where an application for the registration of a design has been abandoned or refused, neither the application for registration nor any representation or specimen of the design ﬁled in pur­ suance thereof shall at any time be open to inspection at the Patent Ofﬁce or be published by the Commissioner.
Compare: Registered Designs Act 1949, s 22 (UK); 1921­22 No 18 ss 59, 120 Information as to existence of copyright On the request of any person furnishing such information as may enable the Commissioner to identify the design, and on payment of the prescribed fee, the Commissioner shall inform him whether the design is registered, and, if so, in respect of what articles, and whether any extension of the period of copy­ 31 30 Reprinted as at 3 September 2007 Designs Act 1953 Part 33 s 33 right has been granted, and shall state the date of registration and the name and address of the registered proprietor.
Compare: Registered Designs Act 1949, s 23 (UK); 1921­22 No 18 s 60 Evidence of entries, documents, etc 32 (1) A certiﬁcate purporting to be signed by the Commissioner and certifying that any entry which he is authorised by or under this Act to make has or has not been made, or that any other thing which he is so authorised to do has or has not been done, shall be prima facie evidence of the matters so certiﬁed.
(2) A copy of any entry in the register of designs or of any repre­ sentation, specimen, or document kept in the Patent Ofﬁce or an extract from the register or any such document, purporting to be certiﬁed by the Commissioner and to be sealed with the seal of the Patent Ofﬁce, shall be admitted in evidence without further proof and without production of the original.
Compare: Registered Designs Act 1949, s 24 (UK); 1921­22 No 18 ss 130, 131 Legal proceedings and appeals 33 (1) Certiﬁcate of contested validity of registration If in any proceedings before the Court the validity of the regis­ tration of a design is contested, and it is found by the Court that the design is validly registered, the Court may certify that the validity of the registration of the design was contested in those proceedings.
(2) Where any such certiﬁcate has been granted, then, if in any subsequent proceedings before the Court for infringement of the copyright in the registered design or for cancellation of the registration of the design a ﬁnal order or judgment is made or given in favour of the registered proprietor, he shall, unless the Court otherwise directs, be entitled to his costs as between solicitor and client: Provided that this subsection shall not apply to the costs of any appeal in any such proceedings as aforesaid.
Compare: Registered Designs Act 1949, s 25 (UK); 1921­22 No 18 s 40 31 Part 33 s 34 Designs Act 1953 Reprinted as at 3 September 2007 34 Remedy for groundless threats of infringement proceedings (1) Where any person (whether entitled to or interested in a reg­ istered design or an application for registration of a design or not) by circulars, advertisements, or otherwise threatens any other person with proceedings for infringement of the copy­ right in a registered design, any person aggrieved thereby may bring an action against him for any such relief as is mentioned in subsection (2) of this section.
(2) Unless in any action brought by virtue of this section the defen­ dant proves that the acts in respect of which proceedings were threatened constitute or, if done, would constitute an infringe­ ment of the copyright in a registered design the registration of which is not shown by the plaintiff to be invalid, the plaintiff shall be entitled to the following relief, that is to say: (a) A declaration to the effect that the threats are unjustiﬁ­ able; and (b) An injunction against the continuance of the threats; and Such damages, if any, as he has sustained thereby.
(c) For the avoidance of doubt it is hereby declared that a mere notiﬁcation that a design is registered does not constitute a threat of proceedings within the meaning of this section.

Compare: Registered Designs Act 1949, s 26 (UK); 1921­22, No 65 Appeal to High Court Every appeal under this Act against a decision of the Commis­ sioner shall be to the High Court.
(3) 35 (1) (3) (2) Notice of every such appeal shall be ﬁled in the Court and served upon the Commissioner within 28 days after the day on which the decision appealed against was given.

In any such appeal the Court shall have and may exercise the same discretionary powers as are conferred upon the Commis­ sioner.

Except with the leave of the High Court or of the Court of Appeal, no appeal shall lie from any decision of the High Court on an appeal against a decision of the Commissioner.
Compare: 1921­22 No 18 s 140 (4) 32 Reprinted as at 3 September 2007 Designs Act 1953 Part 36 s 37A The words “High Court” were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).
36 Powers and duties of Commissioner Exercise of discretionary powers of Commissioner Without prejudice to any provisions of this Act requiring the Commissioner to hear any party to proceedings thereunder, or to give to any such party an opportunity to be heard, the Commissioner shall give to any applicant for registration of a design an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Commissioner by or under this Act.
Compare: Registered Designs Act 1949, s 29 (UK); 1921­22 No 18 s 124 Commissioner may grant extension of time 37 (1) Where by this Act anything is required to be done within a prescribed time, and by reason of delay in the Patent Ofﬁce the thing is not so done, the Commissioner may extend the time for the doing of the thing.

(2) No fees shall be payable in respect of any extension of time (3) granted under this section.
The powers conferred on the Commissioner by this section may be exercised notwithstanding that in any case the time limited may have expired.

Compare: 1921­22 No 18 s 125 37A Additional provisions for extending time limits (1) The Commissioner may extend the time prescribed in subsec­ tion (1) of section 21 of this Act for the ﬁling of an application under that section on such terms (if any) as he thinks ﬁt where he is satisﬁed that the circumstances warrant the extension.
(2) Notwithstanding subsection (1) of this section, the Commis­ sioner shall refuse to grant an extension of time under that sub­ section if in his opinion— (a) The applicant or his agent has not allowed a reasonable margin of time for the delivery to the Patent Ofﬁce, by post or otherwise, of any documents relating to the mat­ 33 Part 36 s 37A Designs Act 1953 Reprinted as at 3 September 2007 (b) (c) ter in respect of which the application for the extension of time is made; or The applicant or his agent has in any other way failed to act with due diligence and prudence in respect of such matter; or There has been undue delay in bringing the application for the extension of time or in prosecuting the applica­ tion.
(3) Every extension of time granted under this section shall be advertised in the Journal in the prescribed manner.

(4) Where an application is made for an extension of time under this section by an agent on behalf of any applicant, the Com­ missioner may as a condition of granting the application re­ quire that written conﬁrmation that the application is author­ ised shall be signed or executed by the applicant and lodged with the Commissioner within such time as the Commissioner speciﬁes.
(5) Any extension of time under this section, and any requirement given or other action taken by the Commissioner under this section, may be granted, given, or taken so as to have effect in respect of things done or omitted to be done before the com­ mencement of this section, as long as the application for the extension of time has been made before registration of the de­ sign in respect of which the application under this section has been made.
The Governor­General may, from time to time, by Order in Council, make regulations for all or any of the following pur­ poses: (a) (6) For the protection of persons who at any time in good faith have begun to avail themselves of any design that is the subject­matter of a matter in respect of which any application under this section is made: Prescribing the evidence that the Commissioner may accept in support of applications under this section: Prescribing the manner of advertising in the Journal ex­ tensions of time granted under this section: Prescribing the grounds of opposition to applications under this section: (b) (c) (d) 34 Reprinted as at 3 September 2007 Designs Act 1953 Part 36 s 39 38 (1) (2) 39 (1) (e) (f) Regulating the procedure to be followed in relation to applications under this section and opposition to such applications: Prescribing the fees to be paid in respect of applications under this section.
Section 37A was inserted, as from 20 October 1972, by section 3 Designs Amendment Act 1972 (1972 No 53).

Costs and security for costs The Commissioner may, in any proceedings before him under this Act, by order award to any party such costs as he may con­ sider reasonable, and direct how and by what parties they are to be paid; and any such order may be entered as a judgment of the Court and, with the leave of the Court, may be enforced accordingly.
If any party by whom application is made to the Commissioner for the cancellation of the registration of a design or for the grant of a licence in respect of a registered design, or by whom notice of appeal is given from any decision of the Commis­ sioner under this Act, neither resides nor carries on business in New Zealand, the Commissioner, or, in the case of appeal, the Court, may require him to give security for the costs of the proceedings or appeal, and in default of such security being given may treat the application or appeal as abandoned.
Compare: Registered Designs Act 1949, s 30 (UK); 1921­22 No 18 ss 45, 127 Evidence before Commissioner Subject to regulations made under this Act, the evidence to be given in any proceedings before the Commissioner under this Act may be given by afﬁdavit or statutory declaration; but the Commissioner may if he thinks ﬁt in any particular case take oral evidence instead of or in addition to such evidence as aforesaid, and may allow any witness to be cross­examined on his afﬁdavit or declaration.
Any such statutory declaration may, in the event of an appeal under this Act, be used before the Court instead of evidence by afﬁdavit, and where so used shall have all the incidents and consequences of evidence by afﬁdavit.
35 Part 36 s 40 Designs Act 1953 Reprinted as at 3 September 2007 (2) Subject to any such regulations as aforesaid, the Commis­ sioner shall in respect of requiring the attendance and the examination of witnesses on oath and the discovery and production of documents have the same powers as the Com­ missioner of Patents has in proceedings under the Patents Act 1953.
(3) Any evidence given on oath before the Commissioner shall be deemed to be given in a judicial proceeding for the purposes of sections 108 and 109 of the Crimes Act 1961.

Section 111 of the Crimes Act 1961 shall apply to every afﬁ­ davit and statutory declaration made for the purposes of this Act.
Compare: Registered Designs Act 1949, s 31 (UK); 1921­22 No 18 s 129 (4) Subsection (3) was amended, as from 1 January 1962, by section 412(2) Crimes Act 1961 (1961 No 43), by substituting the expression “108 and 109 of the Crimes Act 1961” for the expression “one hundred and thirty and one hundred and thirty one of the Crimes Act 1908”.
Subsection (4) was amended, as from 1 January 1962, by section 412(2) Crimes Act 1961 (1961 No 43), by substituting the expression “111 of the Crimes Act 1961” for the expression “one hundred and thirty three of the Crimes Act 1908”.
Recognition of agents Where by this Act any act has to be done by or to any person in connection with a registered design or proposed registered design or any proceedings relating thereto, the act may, unless otherwise prescribed, be done by or to an agent of that person duly authorised in the prescribed manner.
Compare: 1921­22 No 18 s 136 Commissioner may dispense with production of probate or letters of administration in certain cases For the purposes of this section, unless the context otherwise requires,— Deceased proprietor means a registered proprietor of any de­ sign who has died, whether before or after the commencement of this Act; and includes any applicant for the registration of a design who has died before it is registered, whether before or after the commencement of this Act 40 41 (1) 36 Reprinted as at 3 September 2007 Designs Act 1953 Part 36 s 41 Qualiﬁed person, means a person who satisﬁes the Commissioner— (a) in relation to any deceased proprietor, That he has obtained or is entitled to obtain probate of the will of the deceased proprietor or letters of admin­ istration in his estate in the place where the deceased proprietor was domiciled at his death, or that he is the legal representative of the deceased proprietor in that place: That probate of the will of the deceased proprietor or let­ ters of administration in his estate have not been granted or resealed in New Zealand: (c) That the interests of the creditors of the deceased propri­ etor, and of all persons beneﬁcially interested under his will or on his intestacy, will be adequately safeguarded if the Commissioner of Designs registers the qualiﬁed person as the proprietor of the design.
(b) (d) Qualiﬁed person: the words “estate duty” were substituted for the words “death duty”, as from 21 July 1955, pursuant to section 89(7) Estate and Gift Duties Act 1955 (1955 No 105); but the substituted words apply only in relation to the estates of persons dying after the commencement of that Act.

Qualiﬁed person: paragraph (c) of this deﬁnition was omitted, as from 24 May 1999, by section 17 Estate Duty Repeal Act 1999 (1999 No 64).
(2) Upon application in the prescribed manner and payment of the prescribed fees, the Commissioner of Designs, in his discre­ tion and without requiring the production of probate or letters of administration, may,— (a) Where the registered proprietor of any design has died, whether before or after the commencement of this Act, register any qualiﬁed person as the proprietor of the de­ sign: (b) Where an applicant for the registration of a design has died before the registration of the design, whether be­ fore or after the commencement of this Act, allow any qualiﬁed person to complete the application and may register that person as the proprietor of the design.
Every qualiﬁed person who is registered under this section as the proprietor of a design shall hold it subject to all existing interests and equities affecting it.

(3) 37 Part 42 s 42 Designs Act 1953 Reprinted as at 3 September 2007 (4) Nothing in sections 70 or 73 of the Administration Act 1969 shall be deemed to restrict the operation of this section.
Compare: 1947 No 37 s 5 Subsection (4) was amended, as from 1 January 1971, by section 84(1) Admin­ istration Act 1969 (1969 No 52) by substituting the expression “70 or 73 of the Administration Act 1969” for the expression “49 and 52 of the Administration Act 1952”.
Offences 42 (1) Offences in respect of designs required to be kept secret Every person who fails to comply with any direction given under section 9 of this Act, or who makes or causes to be made an application for the registration of a design in contravention of that section, commits an offence and shall be liable on con­ viction on indictment to imprisonment for a term not exceed­ ing 2 years or to a ﬁne not exceeding $1,000, or to both such imprisonment and such ﬁne.
(2) Where an offence against section 9 of this Act is committed by a body corporate, every person who at the time of the commis­ sion of the offence is a director, general manager, secretary, or other similar ofﬁcer of the body corporate, or is purporting to act in any such capacity, shall be deemed to have committed that offence unless he proves that the offence was committed by the body corporate without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence by the body corporate as he ought to have exer­ cised having regard to the nature of his functions in that cap­ acity and to all the circumstances.
Compare: Registered Designs Act 1949, s 33 (UK) Subsection (3) was repealed by section 214(1) Summary Proceedings Act 1957.
Falsiﬁcation of register, etc Every person who makes or causes to be made a false entry in the register of designs, or a writing falsely purporting to be a copy of an entry in that register, or produces or tenders or causes to be produced or tendered in evidence any such writ­ ing, knowing the entry or writing to be false, commits an of­ (3) 43 (1) 38 Reprinted as at 3 September 2007 Designs Act 1953 Part 45 s 45 (2) 44 (1) (2) 45 (1) fence and shall be liable on conviction on indictment to im­ prisonment for a term not exceeding 2 years.
Compare: Registered Designs Act 1949, s 34 (UK); 1921­22 No 18 s 143(1) Subsection (2) was repealed by section 214(1) Summary Proceedings Act 1957.
Fine for falsely representing a design as registered Every person who falsely represents that a design applied to any article sold by him is registered in New Zealand in re­ spect of that article commits an offence and shall be liable on summary conviction to a ﬁne not exceeding $40; and for the purposes of this provision a person who sells an article having stamped, engraved, or impressed thereon or otherwise applied thereto the words “registered in New Zealand” or any other words expressing or implying that the design applied to the article is registered in New Zealand shall be deemed to repre­ sent that the design applied to the article is registered in respect of that article.
Every person who, after the copyright in a registered design has expired, marks any article to which the design has been applied with the words “registered in New Zealand” or any word or words implying that there is subsisting copyright in the design in New Zealand or causes any such article to be so marked commits an offence and shall be liable on summary conviction to a ﬁne not exceeding $40.
Compare: Registered Designs Act 1949, s 35 (UK); 1921­22 No 18 s 143(3), (4) Supplemental Hours of business The Commissioner, from time to time by notice in the Journal, may ﬁx the hours during which the Patent Ofﬁce shall be open for the transaction of public business under this Act, and may declare the Patent Ofﬁce closed for the transaction of public business on any day.
(2) Where the time prescribed for doing any act or taking any pro­ ceeding expires on a day on which the Patent Ofﬁce is not open and by reason thereof the act or proceeding cannot be done or 39 Part 45 s 45A Designs Act 1953 Reprinted as at 3 September 2007 taken on that day, the act or proceeding shall be deemed to be in time if done or taken on the next day on which the Patent Ofﬁce is open.
Compare: Registered Designs Act 1949, s 39 (UK); 1921­22 No 18 s 133 Subsection (1) was substituted, as from 10 December 1976, by section 2(1) Designs Amendment Act 1976 (1976 No 86).

Subsection (2) was amended, as from 10 December 1976, by section 2(2) De­ signs Amendment Act 1976 (1976 No 86) by omitting the words “as aforesaid” in 2 places.
45A Closing of Patent Ofﬁce at short notice (1) Notwithstanding subsection (1) of section 45 of this Act, where, because of an emergency or other temporary circum­ stances, the Commissioner is satisﬁed that it is or will be necessary or desirable to close the Patent Ofﬁce on any day and it is not practicable to give notice of the closure in the Journal as required by that subsection, the Commissioner may, without giving that notice, declare the Patent Ofﬁce closed for the transaction of public business on that day in accordance with the provisions of this section.
In every case where the Commissioner proposes to declare or has declared the Patent Ofﬁce closed under subsection (1) of this section he shall, if practicable, display a public notice of that fact in or on the building in which the Patent Ofﬁce is situated.

(2) (3) As soon as practicable thereafter the Commissioner shall also cause a copy of the public notice, or (if no such notice was displayed) a notice of the exercise of his powers under this section, to be published in the Journal.
Section 45A was inserted, as from 10 December 1976, by section 3 Designs Amendment Act 1976 (1976 No 86).

46 (1) Regulations Subject to the provisions of this Act, the Governor­General may from time to time, by Order in Council, make all such regulations as may in his opinion be necessary or expedient for giving effect to the provisions of this Act and for the due administration thereof.
(2) Without limiting the general power conferred by subsection (1) of this section, it is hereby declared that regulations may 40 Reprinted as at 3 September 2007 Designs Act 1953 Part 45 s 47 be made under this section for all or any of the following pur­ poses: (a) For regulating the business of the Patent Ofﬁce in rela­ tion to designs: For regulating all matters by this Act placed under the direction or control of the Commissioner: For prescribing the form of applications for registration of designs and of any representations or specimens of designs or other documents which may be ﬁled at the Patent Ofﬁce, and for requiring copies to be furnished of any such representations, specimens, or documents: For regulating the procedure to be followed in connec­ tion with any application or request to the Commis­ sioner or in connection with any proceeding before the Commissioner and for authorising the rectiﬁcation of ir­ regularities of procedure: For regulating the keeping of the register of designs: For authorising the publication and sale of copies of representations of designs and other documents in the Patent Ofﬁce: For prescribing classes of persons whom the Commis­ sioner may refuse to recognise as agents in respect of proceedings under this Act: For prescribing matters to be published in the Patent Ofﬁce Journal: For prescribing anything authorised or required by this Act to be prescribed by regulations.
(b) (c) (d) (e) (f) (g) (h) (i) (3) 47 (1) Compare: Registered Designs Act 1949, s 36 (UK); 1921­22 No 18 s 138 Subsection (3) was repealed, as from 19 December 1989, by section 11 Regu­ lations (Disallowance) Act 1989 (1989 No 143).
Fees There shall be paid in respect of the registration of designs and applications therefor, and in respect of other matters relating to designs arising under this Act, such fees as may from time to time be prescribed by regulations made under this Act, and all such fees shall be paid into a Departmental Bank Account.
41 Part 45 s 48 Designs Act 1953 Reprinted as at 3 September 2007 (2) Any sum paid to the Commissioner by mistake, or any sum the payment of which is not required by the regulations made under this Act, may be refunded by the Commissioner, and all money so refunded shall be paid out of public money without further appropriation than this Act.
Compare: Registered Designs Act 1949, s 40 (UK); 1921­22 No 18 s 117 In subsection (1) the words “Consolidated Revenue Account” were substituted for the words “Consolidated Fund” as from 1 April 1964, pursuant to section 4(4) Public Revenues Amendment Act 1963 (1963 No 46).
These words were in turn substituted by the words “Consolidated Account”, as from 1 April 1978, pursuant to section 114(6) Public Finance Act 1977 (1977 No 65), and by the words “a Departmental Bank Account” by section 86(1) Public Finance Act 1989 (1989 No 44).

In subsection (2) the words “Consolidated Revenue Account” were substituted for the words “Consolidated Fund” as from 1 April 1964, pursuant to section 4(4) Public Revenues Amendment Act 1963 (1963 No 46).
These words were in turn substituted by the words “Consolidated Account”, as from 1 April 1978, pursuant to section 114(6) Public Finance Act 1977 (1977 No 65), and by the words “public money” by section 86(1) Public Finance Act 1989 (1989 No 44).
Service of notices, etc, by post 48 (1) Any notice required or authorised to be given by or under this Act, and any application or other document so authorised or required to be made or ﬁled, may be given, made, or ﬁled by sending it by post in a letter addressed to the person concerned at his usual or last known address.
(2) Where any notice is sent by the Commissioner to any person by post as aforesaid, the notice shall be deemed to have been given at the time when the letter containing it would have been delivered in the ordinary course of post.
Compare: Registered Designs Act 1949, s 41 (UK); 1921­22 No 18 s 132 Annual report The Commissioner of Patents shall, in his annual report with respect to the operation of the Patents Act 1953, include a re­ port with respect to the operation of this Act as if it formed part of or was included in that Act.

Compare: Registered Designs Act 1949, s 42 (UK); 1921­22 No 18 s 128 Application of Act to Tokelau This Act shall be in force in Tokelau.
49 50 42 Reprinted as at 3 September 2007 Designs Act 1953 Part 45 s 52 The word “Tokelau” was substituted for the words “Tokelau Islands”, as from 9 December 1976, pursuant to section 3(8) Tokelau Amendment Act 1976 (1976 No 122).

51 Saving Nothing in this Act shall be construed as authorising or requir­ ing the Commissioner to register a design the use of which would, in his opinion, be contrary to law or morality.
Compare: Registered Designs Act 1949, s 43(1) (UK); 1939 No 26 s 71 52 (1) Repeals and savings The enactments speciﬁed in the Schedule to this Act are hereby repealed.
(2) Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby declared that the repeal of any provision by this Act shall not affect any document made or any thing whatsoever done under the provision so repealed or under any corresponding former provision, and every such document or thing, so far as it is subsisting or in force at the time of the repeal and could have been made or done under this Act, shall continue and have effect as if it had been made or done under the corresponding provision of this Act and as if that provision had been in force when the document was made or the thing was done.
(3) Any design registered before the commencement of this Act shall be deemed to be registered under this Act in respect of articles of the class in which it is registered.
(4) Where, in relation to any design, the time for giving notice to the Commissioner under section 63 of the Patents, Designs, and Trade Marks Act 1921­22 expired before the commence­ ment of this Act and the notice was not given, subsection (2) of section 10 of this Act shall not apply in relation to that design or any registration of that design.

(5) Any document referring to any enactment repealed by this Act shall be construed as referring to the corresponding enactment of this Act.
Compare: Registered Designs Act 1949, s 48 (UK) 43 Schedule Designs Act 1953 Schedule Enactments repealed Reprinted as at 3 September 2007 Section 52(1) 1921­22, No 18—The Patents, Designs, and Trade Marks Act 1921­22: Part 2; and Part 4 in its application to designs.

(1931 Reprint, Vol VI, p 656) 1939, No 26—The Patents, Designs, and Trade Marks Amend­ ment Act 1939: Sections 53, 54, 55, and 71 in their application to designs; and section 69.
1943, No 6—The Patents, Designs, and Trade Marks Amend­ ment Act 1943: Sections 5 and 7 in their application to designs.

1946, No 32—The Patents, Designs, and Trade Marks Amend­ ment Act 1946: Sections 4 and 7 in their application to designs.

1947, No 37—The Patents, Designs, and Trade Marks Amend­ ment Act 1947: Section 5 in its application to designs.

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